In Ohio, Transfer of Death (TOD) Deeds have been replaced with TOD affidavits. To designate an individual as the beneficiary of a Transfer on Death of real property, an affidavit must be executed and filed in the office of the county recorder in the county where the real property is located. The county recorder will record the affidavit, for the same fee and in the same manner that deeds are recorded, and index the affidavit in the name of the property owner. Ohio Revised Code §5302.22. The TOD affidavit need not to be supported by consideration or delivered to the beneficiary, but it must be recorded prior to the death of the individual who executed it.
The affidavit itself must:
- be notarized ,
- contain a description of the real property,
- contain a description of the interest (if less than a full interest is being transferred),
- contain “a statement by the individual executing the affidavit that the individual is the person appearing on the record of the real property as the owner of the real property or interest in the real property at the time of the recording of the affidavit and the marital status of that owner. If the owner is married, the affidavit shall include a statement by the owner's spouse stating that the spouse's dower rights are subordinate to the vesting of title to the real property or interest in the real property in the transfer on death beneficiary or beneficiaries designated in the affidavit,” and
- contain a statement designating one or more persons, identified by name, as beneficiary or beneficiaries.
Only named beneficiaries who survive the deceased owner can take title to the property, except when the beneficiary is named solely in his or her capacity as a trustee. If a named trustee dies or resigns before the owner of property dies, then the successor trustee can be considered the beneficiary or contingent beneficiary. A trustee can only be named as a TOD beneficiary in certain situations, however. If two or more beneficiaries or contingent beneficiaries are designated as “survivorship tenants,” they must be “natural” people and a trustee is not a natural person in this situation. Ohio Revised Code §5302.23 (B). If no named beneficiary or contingent beneficiary survives, title to the property passes as part of the deceased owner’s probate estate.
The TOD beneficiary has no interest in the property until the death of the owner. If the interest to be transferred is held by the sole owner or a tenant in common, then the interest vests in the TOD beneficiary upon the death of the owner. Ohio Revised Code §5302.22. If, however, the interest is held jointly with rights of survivorship, then the TOD affidavit is (1) not effective to transfer title until the last surviving tenant dies and (2) subject to section (B)(7) of OHIO REVISED CODE §5302.23. Section (B)(7) reads, “If the owners hold title to the interest in a survivorship tenancy, the death of all except the last survivorship tenant automatically terminates and nullifies any transfer on death beneficiary designations made solely by the deceased survivorship tenant or tenants without joinder by the last surviving survivorship tenant.” Ohio Revised Code §5302.23. The same is true if the interest is held in tenancy by the entireties. Ohio Revised Code §5302.23. “If the last surviving survivorship tenant dies with no transfer on death beneficiary designation, the entire interest of that last surviving survivorship tenant shall be distributed as part of the tenant's probate estate.” Ohio Revised Code §5302.23. Thus, where property is held by more than two people with survivorship rights, to ensure that title will eventually pass to a TOD beneficiary, it is best for all the tenants to execute the TOD affidavit.
A TOD affidavit can also be amended or revoked at any time, “without the consent of [the] transfer on death beneficiary, by the owner of the interest, by the surviving survivorship tenants of the interest, or by the remaining tenant by the entireties of the interest, by executing and recording, prior to the death of the owner of the interest, of the surviving survivorship tenants of the interest, or of the remaining tenant by the entireties of the interest, as the case may be, a new transfer on death designation affidavit pursuant to section 5302.22 of the Revised Code stating the revocation or change in that designation.” Ohio Revised Code §5302.23. The new TOD affidavit will automatically supersede and revoke all prior recorded TOD affidavits with respect to the interest in property identified in the new affidavit.
If the TOD affidavit is not revoked or changed, it supersedes any attempted testate or intestate transfer of that real property or interest in real property. However, “[n]o rights of any lienholder, including, but not limited to, any mortgagee, judgment creditor, or mechanic's lien holder, shall be affected by the designation of a transfer on death beneficiary pursuant to this section and section 5302.22 of the Revised Code. If any lienholder takes action to enforce the lien, by foreclosure or otherwise through a court proceeding, it is not necessary to join any transfer on death beneficiary as a party defendant in the action unless the transfer on death beneficiary has another interest in the real property.” Ohio Revised Code §5302.23.
Shannon G. Becker
The Law Office of Shannon G. Becker, LLC
P.O. Box 3663
Mansfield, Ohio 44907